Limiting Foreign Student Visas in Sanctuaries?

Possible Fallout from California's SB 54

Andrew R. Arthur is a resident fellow in law and policy at the Center for Immigration Studies.

As the Center for Immigration Studies has demonstrated, a number of states, cities, and localities have declared themselves "sanctuary" jurisdictions, which in this context means they have:

[L]aws, ordinances, regulations, resolutions, policies, or other practices that obstruct immigration enforcement and shield criminals from ICE — either by refusing to or prohibiting agencies from complying with ICE detainers, imposing unreasonable conditions on detainer acceptance, denying ICE access to interview incarcerated aliens, or otherwise impeding communication or information exchanges between their personnel and federal immigration officers.1

It is not clear, however, whether those jurisdictions, or the federal government for that matter, have considered the full implications of their decisions to be sanctuaries.

Specifically, these jurisdictions generally consider their decisions to be sanctuaries to be a "one-way street" — while they want legal immigration, they don't want to comply with, or want to actively hinder, immigration enforcement. If those jurisdictions do not want to assist in (or want to impede) immigration enforcement, the president and Department of Homeland Security (DHS) need to consider how DHS provides immigration benefits in those jurisdictions, in order to ensure compliance with the law and to preserve limited federal immigration-enforcement resources. Specifically, they may want to consider limiting approval to enroll foreign students at institutions with sanctuary policies that conflict with the immigration laws.

Enforcement Restrictions in SB 54

One jurisdiction that is considering major sanctuary legislation is California, which the Pew Research Center found was home to more than 2.3 million illegal aliens in 2014.2 On April 3, 2017, the California State Senate passed Senate Bill 54 (SB 54), and on June 13, 2017, that bill was passed out of the California Assembly Public Safety Committee; it is now on its way to the Assembly Judiciary Committee for it to consider the bill.3 According to the Senate's latest formal analysis of that bill, if enacted into law, the legislation would:4

Prohibit state and local law enforcement agencies and school police and security departments from using agency or department money, facility[sic], property, equipment or personnel to investigate, interrogate, detain, detect or arrest persons for immigration enforcement purposes, including but not limited to any of the following:
a) Inquiring into or collecting information about an individual's immigration status.
b) Detaining an individual on the basis of a hold request.
c) Responding to notification or transfer requests.
d) Providing, or responding to requests for, nonpublicly available personal information about an individual, including, but not limited to, information about the person's release date, home address, or work address for immigration enforcement purposes.
e) Making arrests based on civil immigration warrants.
f) Giving federal immigration authorities access to interview individuals in agency or department custody for immigration enforcement purposes.
g) Assisting federal immigration in conducting a search of a vehicle without a warrant.
h) Performing the functions of an immigration officer, whether formal or informal.

The legislation also proposes new policies for public schools, including state colleges and universities. Specifically, an amendment therein to the state's government code would require the California attorney general, "by April 1, 2018, in consultation with the appropriate stakeholders, [to] publish model policies limiting assistance with immigration enforcement to the fullest extent possible consistent with federal and state law at public schools."5 As proposed, that section would dictate that: "All public schools. ... implement the model policy, or an equivalent policy" and "encourage" "[a]ll other organizations and entities that provide services related to physical or mental health and wellness, education, or access to justice, including the University of California ... to adopt the model policy."

Thus, were SB 54 fully implemented, "assistance with immigration enforcement" at public schools would be limited by policy "to the fullest extent possible consistent with federal and state law."6 This provision appears to be directed, at least in part, to information sharing by Designated School Officials (DSOs), school employees who play a significant role in the immigration process as it relates to foreign students, with U.S. Immigration and Customs Enforcement (ICE).

As an aside, the reach of this limitation appears to be restricted by the legislature's authority under California law. Specifically, for purposes of this bill, the phrase "[p]ublic schools" is intended as "all public elementary and secondary schools under the jurisdiction of local governing boards or a charter school board, the California State University, and the California Community Colleges."7

The California State University (CSU) consists of 23 separate campuses, spread across the state from Humboldt State University in the north to San Diego State University in the south.8 According to the school, in the Fall 2016 semester, it had 478,638 enrolled students at the undergraduate and graduate levels.9

The University of California (UC) system, on the other hand, has 10 campuses, including its flagship at the University of California, Berkeley, as well as the University of California, Los Angeles.10 According to its website, "the UC system includes more than 238,000 students."11

Under Article 9, section 9 of the California State Constitution:

The University of California shall constitute a public trust, to be administered by the existing corporation known as "The Regents of the University of California," with full powers of organization and government, subject only to such legislative control as may be necessary to insure the security of its funds and compliance with the terms of the endowments of the university and such competitive bidding procedures as may be made applicable to the university by statute for the letting of construction contracts, sales of real property, and purchasing of materials, goods, and services. (Emphasis added).12

Unlike the UC system, however, California state colleges and universities are "dependent instrumentalities of the state".13 Therefore, while the California legislature can directly impose limits on assistance with immigration enforcement at CSU and the state's community colleges, it can only "encourage" the UC system to follow those limitations.

To understand how the proposed "model policies limiting assistance with immigration enforcement" would affect DSOs at CSU (and potentially in the UC system), it is important to understand the role that DSOs play in the foreign student system, and how nonimmigrant foreign students use that system to enter the United States to go to school.

F and M Nonimmigrant Visas

Nonimmigrant foreign students in the United States generally enter under one of two visa categories, F-1 or M-1.

An F-1 visa allows a nonimmigrant alien "to enter the United States as a full-time student at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program."14 In order to be an F-1 nonimmigrant, an alien "must be enrolled in a program or course of study that culminates in a degree, diploma, or certificate."15

An M-1 visa, on the other hand, is issued to an alien student in a "vocational or other nonacademic program, other than language training."16

SEVP and SEVIS

F-1 and M-1 visas are only available to prospective alien students who are planning on attending a school "certified by the Student and Exchange Visitor Program (SEVP)."17 "SEVP is the [DHS] program that administers the Student and Exchange Visitor Information System (SEVIS)."18 This program "ensures that government agencies have essential data related to nonimmigrant students and exchange visitors to preserve national security."19 SEVP is a component of the ICE National Security Investigations Division.20 In addition to managing SEVIS, SEVP also "certifies all schools for nonimmigrant student admission and ... monitors certified schools to ensure school compliance with SEVIS reporting and recordkeeping regulations."21

SEVIS is a "web-based system" DHS manages through SEVP to "track and monitor" nonimmigrant students, as well as exchange visitors (who enter on J-1 visas).22 It resulted from a years-long effort by Congress to force the former Immigration and Naturalization Service (INS) and later ICE to "develop a system to collect foreign student information electronically from colleges and universities."23

Although ICE SEVP administers SEVIS, various parties, both public and private, use the system, including:24

The schools that enroll nonimmigrant students.

The programs that enroll exchange visitors.

U.S. Customs and Border Protection (CBP), which oversees the admission of nonimmigrant students and exchange visitors into the United States "based upon a review of travel documents, information in SEVIS, and other relevant information."

United States Citizenship and Immigration Services (USCIS), which is responsible for "foreign student benefit applications such as change of status, reinstatements, and work authorization for students."

Department of State (DoS) Consular Affairs, which is responsible for issuing visas to prospective nonimmigrant students and exchange visitors.

DoS Bureau of Educational and Cultural Affairs, which manages the Exchange Visitor Program.

The ICE Counterterrorism and Criminal Exploitation Unit (CTCEU), which is "dedicated to the enforcement of nonimmigrant visa violations."25

The Federal Bureau of Investigations (FBI).

The Role of the DSO in the Student-Visa Process

Under 8 C.F.R. § 214.3(l)(1), an SEVP-certified school must appoint a principal designated school official (PDSO) and can appoint other DSOs to carry out the obligations of the school as they relate to SEVP.26 In order to be a PDSO or a DSO, an individual must:27

Be a regularly employed member of the school administration;

Not receive commissions for recruiting international students;

Not have his or her principal obligation to the school be the recruitment of foreign students for compensation;

Have an office at the school; and

Be a U.S. citizen or a lawful permanent resident of the United States.

As the ICE training materials for DSOs state: "The DSO serves as a link between nonimmigrant students and SEVP and plays a central role in ensuring the nonimmigrant students at their school maintain status while in the United States."28

In order to enter the United States on an F-1 or M-1 nonimmigrant visa, an alien must first apply29 to a school that has been certified for nonimmigrant students by SEVP.30 As of November 2016, there were 8,697 schools certified by SEVP to enroll international students.31 California has the largest number of SEVP-certified schools, with 1,156, far more than the next leading state, New York, with 636 schools.32

If the school decides to admit an alien applicant, the DSO will create an initial SEVIS record for the alien using biographical and financial information the applicant provides33 and issue a Form I-20, "Certificate of Eligibility for Nonimmigrant Student Status," to the alien.34

After an alien chooses a school, he or she must pay a SEVIS fee and apply with DoS for a visa.35 The alien must then take the completed I-20 to the DoS interview.36 If the visa is approved, the alien must take his or her passport with the visa attached, along with the I-20 and supporting documentation, to a U.S. port of entry, where the alien will be inspected by a CBP officer.37

By regulation, an F-1 student is generally admitted to the United States for the duration of status, that is "the time during which [the] F-1 student is pursuing a full course of study at an educational institution approved by [DHS] for attendance by foreign students, or engaging in authorized practical training following completion of studies."38 This means that "[a]s long as an F-1 student is enrolled full-time in an SEVP-certified school, making academic progress, and is not violating any terms of his or her status, the student can legally remain in the United States."39

If the alien is admitted to the United States, the alien must then proceed to the school, and arrive by the start date on the I-20; the DSO will receive an alert to let the DSO know that the "student has entered the country and to expect the student to report to the school by the program start date on the Form I-20."40

By law, the DSO must report whether an alien student has enrolled in the school within 30 days of the deadline for registering for classes.41 If the student arrives at the school and registers with the DSO, the DSO must update SEVIS with the student's information, including the student's physical address or physical residential location in the United States.42 In the alternative, as the DSO training module states:43

When there is evidence that a student entered the United States but failed to report to the school by the program start date, the student is, in most cases, out of status. The student has violated the terms of their visa and nonimmigrant student status. In this situation, you must terminate the student's SEVIS record. Use the termination reason No Show - Manual Termination. Terminating a SEVIS record for the reason of No Show automatically alerts ICE that an individual is in the United States and failed to report.

The school's, and the DSO's, responsibilities continue even after the nonimmigrant student arrives at the school and registers.44 To maintain status, nonimmigrant students are usually required to enroll in a full course of study each session; if an alien fails to do so without authorization, he or she will be out of status, and the DSO must report this through SEVIS.45 In the alternative, by regulation, the DSO is authorized to allow the alien to take a reduced course load under certain circumstances, but must update SEVIS to show such action was taken.46

The DSO must also enter any change of address from the alien student into SEVIS, and "where a student provides a mailing address, the school must maintain a record of, and must provide upon request from the [government], the actual physical location where the student resides."47 Further, an alien student can lose status for working without authorization,48 and where the DSO is aware that has occurred, the DSO must terminate the student's SEVIS record.49

Schools are also required, by regulation, to report in SEVIS within 21 days "[a]ny student who has failed to maintain status or complete his or her program"; "[a]ny disciplinary action taken by the school against the student as a result of the student being convicted of a crime"; and "[a]ny other notification request ... made by DHS with respect to the current status of the student."50

ICE's CTCEU analyzes records of potential status violators from SEVIS, and compares this information against both government and public databases to establish that an alien is either in compliance or has departed the United States, or alternatively warrants a field investigation.51 "Overstays who do not meet ... CTCEU's national security and public safety threat criteria are referred to ICE Enforcement and Removal Operations (ERO) for action."52

The SEVIS reporting requirements are mandated by, or otherwise consistent with, federal statutes. Specifically, section 641(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) required the attorney general to "develop and conduct a program to collect from approved institutions of higher education and designated exchange visitor programs in the United States" specified information relating to F, J, and M nonimmigrants.53 Under section 641(c)(1) of IIRIRA, that information includes, among other information, "the identity and current address" of the alien; "in the case of a student at an approved institution of higher education, the current academic status of the alien, including whether the alien is maintaining status as a full-time student"; and "in the case of a student at an approved institution of higher education, any disciplinary action taken by the institution against the alien as a result of the alien's being convicted of a crime."54

The provision of such information by an approved institution of higher education is a condition, under section 641(d) of IIRIRA, of "the continued approval of the institution under subparagraph (F) or (M) of section 101(a)(15)" of the INA "and the granting of authority to issue documents to an alien demonstrating the alien's eligibility for a visa under subparagraph (F) ... or (M) of section 101(a)(15) of" the INA.55 Under that section of IIRIRA, "[i]f an approved institution of higher education or a designated exchange visitor program fails to provide the specified information, such approvals and such issuance of visas shall be revoked or denied."56

It is ironic that many colleges and universities contend that they are "sanctuaries", when in fact employees of those schools are actively involved in providing information about alien students to ICE on a continuing basis. It is also similarly ironic that while California's SB 54 strictly limits information-sharing by the state with ICE about alien criminals, it appears to handle information-sharing with ICE concerning foreign students very gingerly. This is likely in recognition of the financial benefits that accrue to the state from hosting foreign students.

Financial Impact of Foreign Students

Colleges and universities are an important part of the national economy generally, and California's economy in particular. Nationally, for example, a December 2012 report by the U.S. Departments of Treasury and Education found that "[i]n 2009, postsecondary institutions ... employed 3.7 million workers, 2.4 percent of the 154 million individuals in the labor force."57

With respect to CSU, in its online impact statement, the school has reported that:

Direct CSU-related expenditures for wages and salaries; capital equipment and supplies; student spending on textbooks, meals, and housing; and an array of other items related to its educational mission for the 2008-09 fiscal year totaled $7.96 billion. This total includes:

$5.48 billion in university expenditures on wages and salaries, services, supplies, and related ongoing needs;

$987 million in average annual construction and capital expenditures;

$1.29 billion in expenditures by campus auxiliary organizations such as bookstores, campus restaurants, foundations, research institutes, and other entities. This category captures the bulk of student expenditures for books, on-campus food purchases, etc.;

$203 million in additional off-campus spending by out-of-state students who are in California to attend the CSU. Expenditures on a statewide basis for housing and other living expenses by resident students were assumed to exist with or without the CSU and therefore were not considered an incremental benefit. On a regional basis, residential expenses were counted for out-of-area students as being an incremental benefit to that region.

The total spending impact of this $7.96 billion of direct CSU-related expenditures is estimated at nearly $17 billion. This level of spending activity supports almost 150,000 California jobs annually. In addition, over $995 million in annual taxes was generated in 2008-09 for the state and local governments. Simply stated, the CSU generates $2.13 for each dollar of direct spending from all sources, up from $1.83 in 2002-03. Assessing the impact of CSU-related expenditures confirms that the university is a large and significant institution in California with a spending profile and an economic impact to match.58

As of November 2016, 1.23 million students were present in the United States under the F and M nonimmigrant visa categories, most of whom are attending colleges and universities.59 According to the International Institute of Education (IIE): "The number of international students enrolled in U.S. higher education increased by 7.1 percent to 1,043,839 students in 2015/16, with 69,000 more students than the prior year at colleges and universities across the United States."60 California hosted the largest number of nonimmigrant students in the F and M nonimmigrant visa categories in 2016, with 211,262 total students.61

Those foreign students have a significant effect on the U.S. economy. According to the NAFSA: Association of International Educators, "the 1,043,839 international students studying at U.S. colleges and universities contributed $32.8 billion and supported more than 400,000 jobs to the U.S. economy during the 2015-2016 academic year."62 In California, NAFSA reports, foreign students contributed $5.215 billion and supported 59,521 total jobs.63 Even assuming, as some have argued, that these figures are exaggerated and self-serving, foreign students plainly have an impact on the economy.

Overstay Rates for Nonimmigrant Students

In the Entry/Exit Overstay Report for FY 2016, issued on May 22, 2017, DHS determined that by January 10, 2017, the Suspected In-Country Overstay rate for the nonimmigrants that it had examined who were expected to depart in FY 2016 was 1.07 percent, or 544,676 individuals.64 Under the terms of that report, a "Suspected In-Country Overstay" is a nonimmigrant for whom "there are no records of a departure or change in status prior to the end of their authorized admission period."65

For aliens who had entered on an F, J, or M nonimmigrant visa, "5.48 percent stayed beyond their authorized window for departure at the end of their program," with a "Suspected In-Country Overstay" rate of 2.99 percent for the F visa category.66 This means that just under three percent of all nonimmigrants in the F visa category who were expected to depart in FY 2016 were suspected of remaining in the United States beyond their authorized admission periods and not departing or changing status.

Possible Implementation of SB 54

It is unclear whether California would endanger the ability of its schools to accept foreign students, given the economic impact that those students have on the state's economy. The drafters of SB 54 should be taken at their word, however, in their declaration that they believe "[a] relationship of trust between California's immigrant community and state and local agencies ... is threatened when state and local agencies are entangled with federal immigration enforcement," and any assessment of the possible restrictions that may be placed on information sharing between DSOs and ICE if that law were enacted should proceed with this declaration in mind.67

The effect of SB 54 on DSOs' information-sharing with ICE SEVP would depend on the "model policies limiting assistance with immigration enforcement" that the state attorney general would be required to propose thereunder. It is difficult to conceive, however, a more significant "entanglement" between a state employee and federal immigration enforcement than the relationship between the DSOs and SEVP, and the model policies would likely be drafted accordingly. Specifically, those policies may restrict DSOs to providing SEVP with only the most basic facts concerning foreign students, or with only such information explicitly required by statute.

Alternatively, the state attorney general may test the resolve of DHS, and prevent DSOs from entering any information into SEVIS beyond that required for the applicant to obtain the I-20, or may just decide to challenge the entire SEVIS scheme and seek an injunction of the requirements that a DSO provide information thereunder from a federal district court judge.

It is notable that current California State Attorney General Xavier Becerra68 has been an outspoken critic of the president's policies, and that California joined the "legal challenge by Washington and four other states" of the president's second travel ban in March.69 In a statement that accompanied that filing, Becerra asserted that the order is "an attack on people — women and children, professors and business colleagues, seniors and civic leaders — based on their religion and national origin."70 Notably, press reports state in that case, California contended that "the state, whose population is 27 percent foreign-born, is home to nearly 700 students from the six targeted countries at its state universities and would face the loss of prospective students, scholars and physicians from abroad, as well as millions in tax revenue from travelers."71

Just two of the 23 CSU campuses, CSU Northridge72 and CSU Los Angeles,73 have more than 5,000 international students combined. If California were to seek an injunction of a presidential order that affected 700 students at those universities, it would seem extremely likely that it would seek an injunction if it were denied the ability to accept thousands of foreign students at those universities.

Even if Attorney General Becerra were to take a more conservative course, and simply strictly limit the information that DSOs were permitted to provide about foreign students to ICE, it is unclear whether ICE would concur that the information provided was sufficient to satisfy the schools' obligations under SEVP. Moreover, even if ICE were to find that the information provided under the model policies required by SB 54 did satisfy the requirements of SEVP, there is no guarantee, given the legislature's tone and statements therein, that it won't decide in the future to further restrict DSOs from providing information to SEVP, or prevent them from providing it entirely.

Recent statements by CSU support these concerns. A March 7, 2017, article in the Orange County Register quotes a memorandum from CSU Chancellor Timothy P. White, in which he states that while the school did not have any information concerning "stepped-up" immigration enforcement on the school's campuses, "We do advise any member of our CSU community — students, faculty and staff — who is approached while on campus by federal, state or local officials asking for information or documentation regarding immigration status, to immediately contact the University Police Department."74

If Chancellor White was concerned about imposters claiming to be ICE agents approaching students on campus, his statements are unexceptional. If, however, those statements reflect an intent to use the "University Police Department" to hinder immigration enforcement, it raises larger issues about CSU's willingness to live up to its obligations under federal immigration law and SEVP.

Given these facts, while the California legislature is considering SB 54, DHS should proactively assess whether and under what conditions CSU and California's community colleges should continue to be allowed to maintain their SEVP certifications and accept foreign students, should that legislation be enacted.

Conclusion

Sanctuary jurisdictions make it more difficult for DHS, and in particular ICE, to utilize its limited resources to identify, arrest, detain, and remove aliens unlawfully present in the United States. In SB 54, California, which is home to more than two million aliens who are already unlawfully present in this country, wants to further tighten the restrictions on state and local authorities to assist ICE in immigration enforcement, and "disentangle" state and local agencies from federal immigration enforcement.

DHS should proactively consider how SB 54 will interfere with the obligations of CSU and the California community colleges under the SEVP, and how the department will respond to that legislation, should it be enacted, with respect to those schools’ certifications under the SEVP.

47 8 C.F.R. § 214.2(f)(17). See also 8 C.F.R. § 214.3(g)(1)(iii) ("Current address where the student and his or her dependents physically reside. In the event the student or his or her dependents cannot receive mail at such physical residence, the school must provide a mailing address in SEVIS. If the mailing address and the physical address are not the same, the school must maintain a record of both mailing and physical addresses and provide the physical location of residence of the student and his or her dependents to DHS upon request.")

Related Content

The Center for Immigration Studies is an independent, non-partisan, non-profit research organization founded in 1985. It is the nation's only think tank devoted exclusively to research and policy analysis of the economic, social, demographic, fiscal, and other impacts of immigration on the United States.